Blagojevich Team Got Jury Selection Right

NEAL CONAN, host:

Rod Blagojevich dodged a bullet this week - well, 23 bullets to be exact. The jury at the trial the former Illinois governor came to a unanimous verdict on only one of 24 counts, lying to Federal agents about campaign donations. While he faces up to five years for that one count and a retrial is in his near future, his defense team got something right: selecting the jury.

In interviews with the media, jurors said that one holdout meant the difference between one felony conviction and many more. Jury selection can be part art, part science, and part luck. In some cases, often big ones, jury consultants are hired to analyze potential jurors. We'll find out how one of them does it in just a moment. If you've been on a jury, tell us about the selection process. We want to hear from those of you who served on criminal trial juries. 800-989-8255 is our phone number. Email us: talk@npr.org. And you can join the conversation on our website at NPR.org, click on TALK OF THE NATION.

Joining us now from the studios at UC Berkeley's School of Journalism is Karen Fleming-Ginn. She's a jury consultant at Trial Partners Incorporated, a San Francisco-based trial and jury consulting firm. She served as a consultant in many high profiled cases, including for the prosecution during the Timothy McVeigh case. And nice to have you on the program today.

Ms. KAREN FLEMING-GINN (Jury Consultant): Thank you. Nice to be here.

CONAN: And I assume the basis of jury selection consultation is psychology.

Ms. FLEMING-GINN: Yes, psychology and communication, both are important backgrounds to have in this field.

CONAN: You don't get to actually ask the potential jurors any questions, but I presume you help the attorneys frame their questions.

Ms. FLEMING-GINN: That's correct. It can be a little bit frustrating sitting there at counsel's table not being able to talk to somebody. But I can pass sticky notes and whisper in the ear of the attorney of questions that they should ask and would benefit from.

CONAN: And are you watching these people carefully to judge body language, among other things?

Ms. FLEMING-GINN: Absolutely. That's an important aspect of the job. But that's, you know, only one of many.

CONAN: What's the first thing you tell to a criminal attorney, either defense or prosecution, when they bring you into a case?

Ms. FLEMING-GINN: Well, that they need to be prepared, and they need to do a lot of research about their case and how best to present it to 12 people who are ultimately going to make a hard decision.

CONAN: And do you advise them on saying, if your client is white, you want white jurors; if your client's a women, you want female jurors?

Ms. FLEMING-GINN: Well, sometimes there are stereotypes that can be useful, but that can also be a slippery slope, and that's something that I can tell them more about after learning all of the particulars of their case.

CONAN: And so you have to be given complete access to their case, whether the defense or the prosecution.

Ms. FLEMING-GINN: Correct.

CONAN: And in the McVeigh case, I assume a lot of it - not a whole lot of question about whether he did it. A lot of it would hinge on the death penalty question.

Ms. FLEMING-GINN: Yeah, that's correct, and that's a whole - that's what takes so long to pick a jury in a capital case, because you really have to delve in to people's attitude about crime, people's attitude about the death penalty. Religiosity can become an issue. It's just giant, so it does take a lot of time.

CONAN: How many questions - how long does a lawyer have to interview a veneer, as they say, a potential juror?

Ms. FLEMING-GINN: Well, the longest jury selection that I personally have been a part of was two months and that's due to the fact that we had individually sequestered voir dire, which means each juror is interviewed one at a time. It can also be as short in federal court as an hour, or anything in between.

CONAN: Anything in between. So...

(Soundbite of laughter)

CONAN: ...in some cases - does it make - are there fundamental differences when you're working for the prosecution or the defense?

Ms. FLEMING-GINN: Sure. But again, that goes back to research, to finding out what are the issues that jurors are going to glom onto, what types of arguments are going to be persuasive to different types of people. Every case is different.

CONAN: And do you - in some cases, do you depend on public opinion surveys? Do you depend on demographic analyses of the community?

Ms. FLEMING-GINN: Absolutely. And those can be garnered in several different ways. Probably the best way is to do a series of mock juries or focus groups. And in big cases, it's pretty much a guarantee that both sides are conducting these types of exercises.

CONAN: Mock juries? I mean, they go ahead and pick a jury and they say, for this test, let's pick this kind of juror and see what happens?

Ms. FLEMING-GINN: Well, typically, the goal is to find people whose demographics parallel the community where the case is going to be tried. So there's a little bit of guess work involved in terms of what series of demographics one person may have. But when replicated enough, you can get a pretty good idea of how to proceed into trial.

CONAN: And I wonder, have you ever come across an example of an instance where you disagreed a great deal with your client, the attorney is your client, I guess - with the attorney's - the attorney gets to say - gets a certain number of opportunities to say, you're off the jury, you can't serve. And they - these are precious.

Ms. FLEMING-GINN: They are precious. And I think that's why attorneys hire jury consultants. Because when it comes right down to it, a jury consultant is going to make that tough decision. And, you know, again, that goes back to the relationship between the jury consultant and the attorney, and the level of trust that they have. But that's why a jury consultant is useful, because a lot of times that decision needs to be made in a matter of split seconds.

CONAN: Mm-hmm.

(Soundbite of laughter)

CONAN: And has there been an example where they - the attorney says, well, this person should obviously be excluded. And you say, no, no, no, no, no, he or she should be on?

Ms. FLEMING-GINN: That happens a lot. And sometimes, theres time to explain it. And sometimes, there is not. And it's just - again, it goes back to the level of trust and, you know, the relationship that's been built.

CONAN: Can you give us an example of how that work and how it worked out?

Ms. FLEMING-GINN: Well, there was a case in Northern California that got a fair amount of notoriety the People v. Oakland Riders. And it involved law officers who were accused of beating up drug dealers. And it was a really, really challenging case. There were issues of race. There were issues of, you know, people's feelings about law enforcement.

And the attorneys felt that it was going to be very risky to leave African-Americans on the jury. And when it came right down to it, I convinced them that it was absolutely essential. And we ended up having four African-Americans on the jury and the police where acquitted, or they hung on many charges.

CONAN: Let's get some callers in on the conversation. We're talking with Karen Fleming-Ginn, a senior jury consultant at Trial Partners Incorporated in San Francisco. 800-989-8255, if you served on a criminal jury, email us: talk@npr.org. Well start with Nancy(ph), calling from Portland, Oregon.

NANCY (Caller): Hello?

CONAN: Hi, Nancy. You're on the air.

NANCY: Hi. Thank you.

CONAN: Go ahead, please.

NANCY: So I was being selected for a murder trial and got to the last stages of jury selection, and they dismissed me. And I was a little bit angry because I had spent a week in the process. And I said, why? And they said, well, because you're working on your PhD, and you'll be too analytical.

Ms. FLEMING-GINN: Interesting.

NANCY: Thought that was interesting, that theyd want someone who's just going to go with their gut perhaps, instead of - you - I would think you'd want - if I were on trial, I'd want somebody who's going to think about it and be analytical. But they dismissed me because I was getting my PhD, they told me.

Ms. FLEMING-GINN: Now, did the prosecution dismiss you?

NANCY: No, the defense dismissed me.

Ms. FLEMING-GINN: The defense did. Well, maybe they wanted people who weren't going to take apart the issues and evaluate the jury instructions as thoroughly as somebody with a PhD would.

(Soundbite of laughter)

NANCY: But isn't that what - isn't that what we want as a country, is someone to be analytical?

(Soundbite of laughter)

Ms. FLEMING-GINN: I think it really depends on the case and the types of issues that they're going to try to - tried out in front of a jury. I mean, in some cases, of course, both sides would want somebody who's analytical. But, you know, every case is different.

NANCY: That's right.

CONAN: Well, Nancy, thanks very much. I'd want you on my jury.

NANCY: Well, I hope so. Thank you.

CONAN: Bye-bye. We've already heard that, you know, both sides, neither wants natural leaders who they think will take over a jury.

Ms. FLEMING-GINN: That's correct, because that can get into a situation where the jury is essentially one person.

CONAN: And so - yeah. Well, sometimes a jury is one person but...

Ms. FLEMING-GINN: That - yeah, true. But that can - depending on the whim of that one person, you might not get the result of 12 people really putting their heads together and coming up with a decision.

CONAN: Did you read the - what the jurors' comments had to say after the Blagojevich case?

Ms. FLEMING-GINN: I did. I've been glued to it since it came out.

CONAN: And what strikes you as most interesting? There were several instances where they said, there's one person who held out. We were ready to convict on the most serious allegation.

Ms. FLEMING-GINN: I guess, what was interesting to me was that, yes, there was one person, and that's always a difficult situation for everybody. But there also were several counts where there was a lot of dissention. And I think it was 6-6 on something, so it wasn't just as if one person was a holdout on everything.

CONAN: And I assume that both teams, the defense and the prosecution, as they get ready for a retrial, are parsing everything those jurors had to say to the media. They're not allowed to talk to the jurors themselves.

Ms. FLEMING-GINN: Well, they should be able to. But the thing that people need to remember is that retrials are really, really tough. There's a nuanced notion that the first jury failed or somehow didn't do their job. And if they seat another jury, they almost feel it's their task to get a - excuse me, a conviction.

CONAN: That's interesting. Here's an email from Linda(ph) in Kansas City. I'm always rejected for jury duty because I work for the police department. And my brother, nephew and other family members are police officers. They assume I will be prejudiced toward police testimony. They also assume that I will have access to the case papers, et cetera. And she is right? Do people who work for the police department almost always get rejected in criminal cases?

Dr. FLEMING-GINN: Almost always but not every time. There's also the notion that it would be hard for them maybe in a criminal case to go back to their job after, say, a not-guilty verdict and explain to people why, you know, her colleagues didn't provide enough information or didn't do their job.

CONAN: Karen Fleming-Ginn is with Trial Partners Incorporated, served as consultant for the prosecution during the Timothy McVeigh case, with us today from U.C. Berkeley School of Journalism. You're listening to TALK OF THE NATION, from NPR News.

And let's go next to Mary Ann(ph). Mary Ann from Beaufort in North Carolina.

MARY ANN (Caller): Yes.

CONAN: Go ahead please.

MARY ANN: I think it's curious that I'm often called for jury duty. Somehow my name pops up a lot. And I go and I'll be there a while, and I might be called to sit up on the jury, but I'm always dismissed by the prosecution.

CONAN: How come?

MARY ANN: This happened again in January. And so this time, I asked the DA. Because I'm a psychologist.

Dr. FLEMING-GINN: Ah.

(Soundbite of laughter)

MARY ANN: And I asked her, why is that? And she said, oh, in criminal cases, we almost always dismiss psychiatrists, psychologists - workers because you people want to hear the case and help...

(Soundbite of laughter)

MARY ANN: ...rather than hear the case and convict.

Dr. FLEMING-GINN: I've heard that before, and I think there's another aspect of this that you can - as a psychologist, you can see a lot of shades of gray. You can hear about a person's life and understand that there's a lot of issues working. And in a criminal case, I think that a lot of times prosecutors don't want that level of analysis.

MARY ANN: I think you may be right because once I slipped through and I was on the jury, and clearly this man was guilty of shoplifting. They had him on the tape, and you could - you could see him doing it. And I did not want to convict him because his wife and his two little kids were out there (unintelligible).

(Soundbite of laughter)

CONAN: His tortured childhood, yes.

MARY ANN: So I really think maybe there is some good reason why not to put us on the jury. Of course, ultimately, we did convict.

CONAN: Mary Ann, I want you on my jury too.

MARY ANN: Well, I'll be happy to be there.

CONAN: Okay. I'll commit a crime soon.

(Soundbite of laughter)

CONAN: Mary Ann, with us from Beaufort. Here's an email from Margaret(ph). As a retired criminal defense lawyer who specialized in death penalty cases, I'm concerned about a jury trial phenomenon that many people might not know about. It's panel members who answer their jury selection questions in such a way as to increase their chances of staying on the panel or getting kicked off, whatever their preference is.

People who are eager to sit in judgment of their fellow citizens or who feel it's there personal duty to fight crime by convicting the accused try to answer in a way that will keep themselves on the jury. People who are hesitant to sit in judgment give answers that maximize their chances of getting excused from jury service. The result: a panel that's skewed toward guilty verdicts and toward longer sentences for those who are convicted. Is that a phenomenon you're familiar with?

Dr. FLEMING-GINN: It is. And I think that with all of the shows that we see, the "CSI" and all those...

CONAN: Mm-hmm.

Dr. FLEMING-GINN: ...they make the prospect of being a juror look pretty sexy. And I think with, especially high-profile cases, people all of a sudden want to be on the jury. I mean, in the past, people would come ask me, oh, good you're a jury consultant. Can you please tell me how to get off jury duty? And I don't see that as much anymore.

(Soundbite of laughter)

CONAN: Well, that's interesting. But it's also the so-called "CSI" effect that if the prosecution does not have slam-dunk DNA evidence, the jurys going to demand to know why.

Dr. FLEMING-GINN: That's true. And there's a lot of questions that are now finding themselves on juror questionnaires to try to discern that "CSI" effect. It is really an interesting thing that has swept our country.

CONAN: Let's go next to Dawn(ph). Dawn, with us from Cincinnati.

DAWN (Caller): Hi.

CONAN: Hi, Dawn. Go ahead please.

DAWN: It's ironic to segue into - that's exactly what happened in the case that I was chosen for - it doesn't matter I suppose what I was called for. But, I mean, it was some misconduct between a husband and his daughter - his girlfriend's daughter. And during the questioning, they would ask me, you know, do I require "CSI" evidentiary issues. And I said, you know, you want to put this man away for life, and if you don't have any kind of DNA, you don't have any kind of evidence, then I can't see myself convicting him. And this was after three days of questioning. And it was the third day that the prosecution wanted to dismiss me. And, of course, the defense wanted me.

(Soundbite of laughter)

DAWN: And because I was self-employed, I was, like, hey, I'll go. I'm okay because I can't see putting this man in jail.

CONAN: Hmm. And how did it work out?

DAWN: He - they actually weren't able to seat a jury, so from my understanding, it went to mistrial.

CONAN: Well, that's what would happen. Interesting, Dawn, thanks very much.

DAWN: Thank you.

CONAN: Bye-bye. And we'll end with this email from Mark(ph) in Columbus, Ohio. One of the problems I have about the way jury selection is done -in fact, with much of the criminal justice system - is the purpose seems to have the attorney's win. In my case, the purpose should be to find the truth. Sometimes the trial is more about the strategy to win, the verdict, rather than to make sure the guilty are punished and the innocent are set free. Well, that's the prosecution's burden, theoretically. But I wonder, do you see your work as manipulative?

Dr. FLEMING-GINN: I don't. That sounds like an email coming from a purist. But in - one thing to keep in mind is in most high-stakes cases both sides have a consultant. And there's a lot of, you know, things to look out for. And there is a lot of art, there is a lot of science, and there's also some luck, as you mentioned, so that both sides really can get a jury that can be receptive to their case.

CONAN: Thank you very much for your time today. We appreciate it.

Dr. FLEMING-GINN: My pleasure.

CONAN: Karen Fleming-Ginn is a jury consultant at Trial Partners Incorporated in San Francisco. She served as a consultant for the Timothy McVeigh case for the prosecution. She joined us from the studios at U.C. Berkeley School of Journalism.

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